Tuesday, October 13, 2015

Does freedom of religion include a right to discriminate?

Trinity Western University (TWU) is a Canadian Christian post-secondary institution with plans to open a law school in 2016. The Juris Doctor (law degree) program was approved by the British Columbia Ministry of Advanced Education in December 2013. However, due to the contents of TWU's Community Covenant Agreement, the proposed law school has attracted considerable controversy.

The five page covenant covers many aspects of life while attending TWU. Among other things, students must:
  • "reserve sexual expressions of intimacy for marriage" and
  • "Voluntarily abstain from [...] sexual intimacy that violates the sacredness of marriage between a man and a woman".
Elsewhere, in the "Healthy Sexuality" section, the covenant reiterates that "sexual intimacy is reserved for marriage between one man and one woman".

The terms "of this covenant apply to both on and off TWU's campus" - that is, everywhere. "Students sign this covenant  with the commitment to abide by the expectations contained within the Community Covenant," while "TWU reserves the right to question, challenge, or discipline any member in response to actions that impact personal or social welfare." TWU policy is that the school "reserves the right to discipline, dismiss, or refuse a student’s re-admission to the University" if a student violates the terms of the covenant. Signing the covenant is mandatory for all students.

The Law Society of Upper Canada and the Nova Scotia Barristers' Society found TWU's covenant to be so offensive they decided to not recognize its graduates - meaning TWU alumni would not be able to practice law in those provinces. TWU sued both organizations, and each jurisdiction gave a different verdict: Ontario ruled that the Law Society of Upper Canada was within its rights not to recognize graduates from Trinity Western's law school, while the Nova Scotia Supreme Court determined that the Nova Scotia Barristers' Society must accept TWU graduates. Both rulings are being appealed.

What is the principled stand to take when two Charter values - freedom of religion and freedom from discrimination - conflict? Does freedom of association include the capability to exclude certain types of individuals from your group or institution?

It is my opinion that the Ontario court verdict is the ethical and consistent one, while the Nova Scotia judge erred in his ruling.

The TWU covenant is the equivalent of a private (neither funded nor owned by government) hotel chain, or a family-owned bed and breakfast, welcoming married same-sex couples to sleep in their rooms as long as they sign a contract whose terms include remaining celibate for the duration of their stay, while married heterosexuals face no such restrictions.

If you think such restrictions are legitimate, would your answer change if every hotel  and B&B in a sizable region forbade copulation between same-sex married guests? Should landlords be able to legally demand that gay tenants remain celibate, even if this left couples with no place to live or stay the night?

If you think this is a reasonable power for landlords to have, what other criteria could be grounds for refusal to let a room? Hair or skin colour? Certain varieties of religious belief (or their lack)? Rooms restricted to vegetarians?

If you do not agree that landlords and hotel managers should be able to police the private, consensual, legal sexual activities between some married couples, why should a private university have such authority?

Not that TWU is entirely private - it receives between one and three million dollars in government funds each year. There is a strong case that with millions of dollars of government subsidies, TWU should be subject to the same non-discrimination rules as every other recipient of federal money. As a practical matter, however, government funds have represented at most 5% of TWU's revenues. The principle under dispute would not be affected if TWU refused all future government subsidies.

There have been several arguments made in favour of TWU, but I do not find them convincing.
  • There is no (or at most a negligible) practical effect on anyone's rights. This is false. There are currently 18 common law schools in Canada - TWU would be the 19th. Should it proceed, over 5% of the first year law school openings in Canada (and 25% in British Columbia) would be closed to non-celibate married gays (in addition to all those who are sexually active and not married). Essentially, the argument is that discrimination is okay below a certain threshold that TWU does not surpass, since homosexuals can go elsewhere. A formalized "seperate but equal" eduation system was rejected in the United States decades ago; we should not be introducing explicitly exclusionary schools in Canada today.
    Furthermore, this sets a dangerous precedent - what other criteria might other educational institutions set on who can attend? Might a private Hindu university demand all students eschew consumption of beef products, on campus and off? Should a private Jewish university be able to forbid any physical contact between unmarried students of the opposite sex? Could a private Muslim university enforce a requirement that all female students wear a niqab? 
  • The university is exercising its religious freedom in preventing non-celibate gay relationships among the students, staff, and faculty. The logic here is faulty on two levels. First, freedom of conscience applies to people, not organizations. Second, this sentiment demonstrates a fundamental misunderstanding of freedom of conscience. Religious freedom allows you to pray and worship the Deity of your choice in whatever manner you see fit, subject only to generally applicable laws. Religious freedom does NOT extend to demanding others obey your parochial taboos. That is persecution, hiding under the rhetoric of liberty. My freedom to swing my fist stops at the bridge of your nose.
  • The Supreme Court of Canada already ruled on this topic, when TWU opened its teachers college. In 1996, the British Columbia College of Teachers refused to certify graduates from the TWU education program. TWU litigated, and in 2001 the Supreme Court decided in favour of the university. However, the basis of the ruling was not the discriminatory aspects of the school's covenant. Rather, the Supreme Court sided with TWU because there was no evidence that graduates would treat their future gay students prejudicially. The 2001 Supreme Court ruling is not a relevant precedent for the current situation. 
  • Trinity Western has had a teacher's college with a substantially similar covenant for over a decade. Why are lawyers being held to a different standard than teachers? I agree. All of the arguments raised here are as applicable to provincial teachers' associations as their law societies. Perhaps these concerns should have been raised publicly earlier, but that does not invalidate them.
  • The Law Society of Upper Canada and the Nova Scotia Barristers' Society are the wrong parties to be arguing this in our courts. If the TWU covenant violates the Charter or human rights legislation, let a student (or faculty member) file a human rights complaint.  I agree with this argument as well. It's entirely possible that a human rights tribunal (or a direct Charter challenge) would be an appropriate forum to address the issue. But as I am not well versed in the intricacies of Canadian legal jurisprudence, someone more knowledgeable than me would have to weigh in. For now, I take a "Yes, both" approach instead of looking at it as a (possibly false) "Either / or" dichotomy.
Given that TWU has met all provincial curriculum requirements, my objections (and presumably those of the law societies of Ontario and Nova Scotia) to recognizing TWU's graduates would disappear if it also dropped its discriminatory covenant. I find it a bit rich for TWU to claim, in effect,  "How dare you discriminate against TWU just because our school openly discriminates against homosexuals?"

But let's posit, for the sake of the argument, that Trinity Western, as a (largely) private institution regulated by provincial law, should be free to admit only those students who uphold Christian values. Why shouldn't law societies, which are also private bodies regulated by provincial law, be able to withhold recognition from graduates of a program that violates Canadian and Charter values?

On what basis can one both propose that TWU has absolute discretion in determining its admission criteria and deny the same capability of provincial bar associations?

Thursday, August 06, 2015

Jerry Coyne, author of Faith vs. Fact, visits Toronto

On June 10, Jerry Coyne (whose website I have enjoyed reading for a few years) came to Toronto to speak about his new book at a Centre for Inquiry sponsored event. I enjoyed his talk and purchased his book (which I'm currently about halfway through).

I was asked by one of the attendees to write a synopsis for Canadian Atheist. Feel free to read my comments on his public address. I am glad I had the opportunity to hear him speak in person.

The next day, he was interviewed by Steve Paikin on The Agenda. It overlaps considerably with what his CFI speech, so below I have included that segment of the show.

Saturday, July 04, 2015

Kate Cayley wins the Trillium Award

On Wednesday, June 17, the 2015 Ontario Trillium Book Awards were announced. Finalists included literary heavyweights Margaret Atwood and Thomas King.

I am delighted to say that the Kate Cayley was the winner of the prize for her collection of short stories, How You Were Born.

There was a brief flurry of media articles announcing the award. It is an excellent collection, definitely worthy of the prize, and I am delighted that Kate Cayley won over far more well known and established writers.

I may not be the most objective person to judge, however; Kate is my sister-in-law, and I couldn't be prouder.

Decide for yourself - buy a copy of How You Were Born from your local bookstore, borrow a copy from the library, or order it online. Reading the collection is well worth your time.

I am sure you will enjoy How You Were Born, by Kate Cayley.

Sunday, March 22, 2015

Chesterton debate: Full video

Last month I participated in the Chesterton debate. I have previously published my opening remarks (15 minutes) and my responses to Dr. Benson's three questions (five minutes each).

Below is the entire debate, including my questions to Dr. Benson, questions from the audience, and a discussion guided by the moderator, Lorna Dueck.

I've only watched a few minutes so far, and can say that the picture quality is excellent.

I hope you enjoy.

Friday, March 20, 2015

Chesterton Debate: Question three and my answer

Dr. Benson asked a third and final question of me based on my opening remarks in the Chesterton debate. His question is indented below; my answer follows.

Chief Justice Brian Dickson in Big M Drug Mart stated that religious freedom is prototypical - meaning it has led the way to other rights such as freedom of speech, assembly etc..  It would seem then that once we have religious freedom of all including freedom of politicians to live in accordance with his/her religious principles, we have a greater chance of protecting all the other freedoms.  This being the case, as well as the strong evidence (referred to in my opening comments) about various public goods (such as charitable works, volunteerism etc.) being strongly correlated with religious adherence, do you not agree that religion needs to be protected from moves to narrow its public as well as private influences?
Paragraph 123 in Big M:
Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously‑held beliefs and manifestations and are therefore protected by the Charter . Equally protected, and for the same reasons, are expressions and manifestations of religious non‑belief and refusals to participate in religious practice.
It is my view that freedom of religion and its more general right, freedom of conscience, are essential for a democratic country, as well as the closely related principle of freedom of expression. So in that sense, yes – religion deserves protection. But I do not think that it needs additional, special privileges above and beyond those accorded to all voluntary associations within society. Protecting the freedoms of expression and conscience are sufficient to guarantee religious liberty.

Consider this: religious liberty itself is constrained in countries where citizens do not enjoy full freedom of conscience and expression. The Economist reported in December that 19 countries punish their citizens for apostasy - leaving their religion - and in 12 of those nations it is punishable by death.

55 countries (including several Western democracies) have laws against blasphemy; a conviction could lead to a prison term in 39 nations and execution in six. Blasphemy laws have been abused almost everywhere they are enacted, frequently to suppress religious minorities, persecute political rivals, minority sects, or stifle inconvenient speech. It is important to realize that Canada is not exempt; we too have a blasphemy law, which was last used to censor a Monty Python film, in a failed attempt to prevent its distribution in Canada. I've never understood the rationale for blasphemy laws; surely those who believe in an omnipotent God know He does not need the support of a human law, while those who do not believe in God view blasphemy as the ultimate victimless crime.

Mr. Benson claimed in his opening remarks that "secular is a sort of exclusionary violence to freedom and rights". Yet it is precisely the devout, particularly those who belong to minority faiths, would should be the most committed secularists. The principle of secularism - government neutrality between and among faiths - is the best protection for religious minorities that are persecuted in far too many places in the world. Anyone genuinely concerned about religious liberty, and freedom of conscience, must oppose tonight's resolution, for a secular state is the only one that guarantees full freedom of religious worship and expression. A secular state is not concerned with purported acts heresy or apostasy. No one need smuggle a bible into a secular country; a secular nation has no pogroms.

And let us not forget that those that adhere to no religious tradition are equally deserving of protection - and are often specially targeted for persecution. Even in the United States, with its official separation of Church and State, politics is so infused with religion that atheists are banned from holding public office by the constitution of seven US states. Contrary to Mr. Benson's insinuations, it is not the secular minded folk who lack tolerance.

Regarding religious adherence and various public goods, Professor of sociology Phil Zuckerman asks an intriguing question: "Is a society to be considered moral if its citizens love the Bible a lot (as in the United States), or rather, if its citizens virtually wipe out poverty from their midst (as in Scandinavia)?"

More generally, however, there are very good reasons for keeping God out of politics. As lawyer and philosopher Ron Lindsay put it, "We can't base our laws based on the word of God in part because we don't know what God is saying. The Jewish and Islamic god says you can't eat pork; the Christian god says that's okay. The Islamic god says Friday is a holy day, the Jewish god says Saturday, the Christian god says Sunday. The list of disagreements can go on and on and on. As soon as you introduce religious precepts into a public policy discussion, you are essentially shutting out of that discussion anyone who is not a follower of that religion."

Let us ground our politics in evidence and values accessible to all members of society. We can best protect freedom of religion by keeping it as far from politics as we possibly can.

Saturday, March 14, 2015

Chesterton debate: Question two and my answer

The indented text below is Dr. Benson's second question to me based on the text of my opening remarks in the Chesterton debate. My response follows.
As did mid 19th Century secularists you seem to suggest that "evidence based public policy" favours the non-religious viewpoints.   Many things that matter to us in life and government policy are not, however,  susceptible to "evidence" assessments free of moral commitments.   Moral debates about such issues as euthanasia, gender-selection abortion or certain kinds of tax policies are not resolved by "evidence" cut off from competing interests and beliefs.   In short: we choose how to weigh evidence against a moral background based on our beliefs.   Your approach gives atheists and agnostics the ability to have their beliefs effective in relation to moral public policy formation but not religious people's: how can that be fair?

Embedded in this question is a false assumption - that I am proposing we exclude the ability of religious politicians to use their moral judgement. I have never advocated for such a position, nor has any prominent secularist organization. However, all politicians, religious and non-religious alike, have a responsibility to express their goals and concerns in universal values, rather than in the terms of their particular creed. This allows all people, of all backgrounds, of all faiths (including those having none) - to fully participate in the political arena. Mr. Benson asks: How can that be fair? I respond: What could be more fair?

Mr. Benson is correct that I favour evidence based public policy. We both hold the view that while evidence must inform public policy, it cannot dictate it. One key role of elected officials is to determine the extent to which competing interests benefit from a proposed law or policy. There are often trade offs that lie at the heart of a politician's job - such as whether to raise or lower taxes (and which ones), increase or decrease spending (and where), run a surplus or deficit - all in an infinite number of possible combinations. We should use knowledge to foresee, as best we can, the consequences of various options, but ultimately a decision will be made due to priorities that come from a philosophical or moral foundation that is not based on evidence alone.

Religious groups are allowed to have their say in the public square, even if they give explicitly religious rationales for their positions. By the same token, however, politicians and judges are under no obligation to accept arguments whose only justification is religious in nature.

While same sex marriage was being considered in Canada  a decade ago, religious voices were a significant part of the discussion and religious groups were very active in the debate. Canada's legislature, its courts, and society overall did not end up agreeing with the religious perspective – but all interested parties were able to express their moral beliefs about the topic.

More recently, in October, an interesting case was heard by the Supreme Court of Canada about whether it is legal for a municipality in Quebec to start its meetings with a prayer. The Court has yet to render its verdict.

In addition to the plaintiff and the defendant, there were several interveners that presented before the Supreme Court: the Canadian Secular Alliance, the Canadian Civil Liberties Association, the Evangelical Fellowship of Canada, the Catholic Civil Rights League, the Faith and Freedom Alliance, and the Association of Catholic Parents of Qu├ębec. It is simply not the case that "religious beliefs are not permitted in the public sphere." Religious voices are being heard, even if their arguments are sometimes rejected. Religious organizations engage all levels of government, through direct lobbying, raising money, taking out advertisements, voting with their feet, just like any other group. This cannot be accurately described as discrimination.

Mr. Benson: I am here tonight because I am intensely concerned about fairness. To ensure justice and equal participation from all members of society, we need only apply the criteria that you yourself laid out just a few minutes ago - that we judge arguments based on their fairness, reasonableness, and general applicability. If we combine that with the ideas from my opening address - that public policy be based on the principles of human experience, objective evidence, reason, human empathy and compassion - then we have a way to determine which laws, actions, and policies are in the common interest, whether one's altruism is motivated by religious faith or whether the inspiration to public service stems from a humanist philosophy. This is democratic. This is just. This is fair.

Saturday, March 07, 2015

Chesterton Debate: Question one and my answer

The format of the Chesterton debate allowed Dr. Benson and I to read each other's opening statements in advance of the event and to submit three questions based on them. Below is Dr. Benson's first question to me (indented), and my response. 
You say you are opposed to theocracy because it forces religious viewpoints on a diverse society and we don't disagree about this.  However, you  don't address the existence of what Catholic philosopher Jacques Maritain once described as "atheistic theocracy".  Your view, which would exclude religious influences but not non-religious influences in the public sphere, thereby privileges atheism and agnosticism in direct contradiction to the Supreme Court of Canada's decision in Chamberlain (2002) If all citizens are to be treated equally, how would you guard against "atheistic theocracy" if you don't allow religious beliefs in the public sphere?
This question, interpreted literally, contradicts itself. The definition of theocracy is "A government ruled by or subject to religious authority." One cannot be both an atheist - one who looks at the thousands of gods humanity has worshipped over its history, and does not believe any of them actually exist - and be ruled by religious doctrine. A direct answer to a contradictory question cannot exist.

Therefore I hope you will indulge me if I take a figurative approach to Mr. Benson's words, and address instead what I think is the intended spirit of his question. His concern is about a state dogmatically and inflexibly ruled by an unbelieving autocrat, who also demands strict adherence from all public figures to an anti-theistic ideology. Mr. Benson is worried about the possibility of an atheistic dictatorship.

However, tonight we are not talking about atheism. This was last year's debate topic. We are discussing secularism - and the two are quite distinct concepts. Equal treatment among all citizens means privileging neither religious nor anti-religious voices. Supporting government neutrality in matters of religion, where the government neither supports nor suppresses religious expression,  is the secularist stance. Secularists stand against government coercing people to abandon their religion as much as government enforcing religious dictates upon those who believe differently, or not at all.

Secularism does not privilege atheism or agnosticism. Secularism is the compromise position. Which Mr. Benson holds as well, since he has stated that he does not wish to force his (or anyone else's) religious viewpoints on society at large.

Let's examine the status quo in Canada, posit the secular stance, and imagine, for a moment, what a dystopian atheistic dictatorship would look like:

Today God is mentioned in the Charter of Rights and Freedoms and in our national anthem. A secular state would not mention God in either. An atheistic dictatorship would use both to promulgate the State's position that there is no God.

Today many legislatures and municipal councils in Canada start their official proceedings with the Lord's prayer, a Christian invocation, a generic theistic supplication, or with rotating orations from various faiths. A secular state would have elected officials spend their time doing their job, what they are paid to do - tending to the earthly interests of society. An atheistic dictatorship would have these governmental bodies start their proceedings with an explicit affirmation that God is an imaginary entity.

Today organizations whose only purpose and activity is to advance religious beliefs enjoy tax credits and subsidies of over one BILLION dollars per year. A secular state would grant no financial privileges to organizations promoting or discouraging faith. Charitable status would be granted to whichever groups perform charitable deeds, such as feeding the hungry and clothing the naked. An atheistic dictatorship would grant charitable status and other financial privileges to organizations whose only purpose is to denigrate religious belief.

Today exemptions are granted from generally applicable laws on the basis of religious beliefs, but are denied to those who object on other grounds. Examples include working on the Sabbath or other religious holidays; nurses handling I.V. bags; and students carrying weapons in schools. A secular state would either a) grant no such exemptions, or b) permit them for all deeply held philosophical commitments, whether their source was from religion, culture, or personal conscience. An atheistic dictatorship would grant exceptions only for those who ground their objections in their atheism.

Canada is a nation of considerable religious privilege. Secularists argue for government neutrality in matters of religion. Should an atheistic dictatorship arise, Mr. Benson can depend on me and all secularist organizations to fight against these hypothetical discriminatory policies. For now, our efforts are dedicated to combating the very real injustices that exist today.